High Court rejects attempt to have children’s referendum result annulled

Joanna Jordan's petition to have the result of the children's referendum annulled. The High Court. Judgment was delivered on October 18th, 2013, by Mr Justice Paul McDermott.

Judgement
A petitioner failed to make a case on the balance of probabilities that the Government's unconstitutional information campaign for the Children's Referendum materially affected the outcome, resulting in a Yes result.

Background
Joanna Jordan's application was based on the ruling of the Supreme Court in McCrystal v. Minister for Children and Youth Affairs & Ors IESC 53 delivered on November 8th, 2012, and the several judgments of the court delivered on December 11th.

This established that the Government had spent €1.1 million of public monies to promote a Yes vote in the children’s referendum, in contravention of the principles established in McKenna v. An Taoiseach (No. 2) 2 I.R. 10.

Mr McCrystal had challenged the expenditure of public money on a Government information booklet, a website and radio, television and print advertising favouring a Yes vote in the referendum.

The court found the campaign constituted a clear disregard of the rights of citizens to a referendum conducted in accordance with the norms of the democratic process mandated by the Constitution.

Slogans in the Government booklet such as “Protecting Children” and “Supporting Families”, as well as visual representations of children, were found to have been designed to induce a subliminal, emotional response to advocate a Yes vote. The court granted a declaration that the various publications “in places” breached the principles set out in the McKenna case.

The proceedings brought by Ms Jordan concerned the effect, if any, of that unconstitutional behaviour on the poll. She submitted that the breaches were so egregious and serious in themselves that it was likely that they had an impact on the electorate and materially affected the outcome of the referendum. The Minister for Children and the Attorney General (the respondents) contended that a finding in McCrystal that aspects of the information campaign were at variance with the McKenna principles did not mean that the court had to set aside the result of the referendum.

Decision
Mr Justice McDermott referred to Mr Justice Barrington in Hanafin v. Minister for the Environment 2 I.R. 321, who said: "This Court will not lightly set aside what appears, prima facie, to be an Act of the sovereign people. Unless, therefore, what has happened is an express and obvious constitutional abuse affecting the outcome of the Referendum, the onus of proof on the petitioner will be a heavy one."

Pointing to article s. 43(1) of the Referendum Act 1994, Mr Justice McDermott said Ms Jordan must demonstrate that, on the balance of probability, the unconstitutional behaviour of the Government affected “the result of the referendum as a whole”.

Ms Jordan procured the services of expert witnesses who testified in support of the proposition that the Government information campaign had done this.

Her witnesses included political scientist Dr Michael Bruter of the London School of Economics, British advertising expert Robert Heath and Irish Times journalist John Waters.

Dr Bruter extrapolated figures from a Behaviour and Attitudes post-referendum survey, which Mr Justice McDermott accepted established some statistical correlation between receipt of the Government booklet and voting Yes. However, the judge said he was not satisfied that receiving the booklet meant the recipient was thereby caused to vote Yes.

Expert witnesses for the respondents gave evidence that that in the absence of a properly designed study implemented at the time of campaign it was not possible to come to a clear view that the unconstitutional expenditure of money by the Government resulted in victory for the Yes side that would not otherwise have occurred.

On the website, it was found that the number of unique visitors, 23,309 – less than 1 per cent of the voting population – was too small to suggest it had a material affect on the result.

Concerning the Government’s TV, radio, and print advertising, the judge was inclined to agree with witnesses for the respondents who said it was impossible to establish definitively what role the material had on the referendum result among the rest of the campaign “noise”.

Ms Jordan also contended that that the ruling of the Supreme Court on November, 8th, 2012, two days before polling day, should have been followed by emergency legislation to postpone the polling day.

Additionally she argued the respondents did not attempt to remedy the breaches of the Constitution identified by the Supreme Court.

Mr Justice McDermott said he had considerable doubt whether the jurisdiction of the court extended to a review of a Government’s failure to introduce emergency legislation. Pointing to Government moves to pull campaign advertising and edit its website after the Supreme Court ruling, he also rejected the claim that any Minister or the Government interfered with the constitutional rights of citizens or the democratic process.

The judge ruled the evidence adduced by the petitioner had established a fair bona fide or serious issue to be tried on the grounds set out in the petition and, therefore, he granted her leave to present the petition.

However he was not satisfied that on the balance of probabilities she succeeded in establishing the grounds for the referendum result to be overruled. Thus, he dismissed the petition.

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